Jagdish Sahai, J.
1. It would contribute to a clear understanding of the question referred to us for our opinion If the following facts are given:---
Suit No. 6 of 1956 of the Court of the Civil Judge, Gorakhpur, was filed by Lala Bulaki pass (Plaintiff) against (1) M/s. Jai Narain Har Narain, (2) Jai Narain and (3) Har Narain (defendants). In this suit Lala Bulaki Dass, plaintiff, claimed Rs. 22,000/- from the defendants by way of refund of advance money given by him to the defendants along with interest and damages on the allegation that the agreement dated 1-4-1953 between the parties had been breached by the defendants.
2. Suit No. 599 of 1956 of the Munsifs court, Gorakhpur, was filed by Firm Jai Narain Har Narain against (1) Firm Sohan Pal Munna Lal and (2) L. Bulaki Dass. The plaintiff in this case (Firm Jai Narain Har Narain) claimed a sum of Rs. 5,000 from the defendants, Firm Sohan Pal Munna Lal and Bulaki Dass on the allegation that the agreement aforesaid had been breached by them.
3. Suit No. 599 of 1956 was transferred to the court of the learned Civil Judge, Gorakhpur. The two suits were consolidated and disposed of by one common judgment, which is dated 30-4-1957.
4. Suit No. 6 of 1956 was decreed for a sum of Rs. 14,202/7/- against M/s. Jai Narain Har Narain, Jai Narain and Har Narain, Suit No. 599 of 1956 was dismissed.
5. The learned Civil Judge further directed that the main judgment (the one he pronounced) 'will remain on the record of suit No. 6 of 1956' and a copy of this be placed on the record of suit No. 599 of 1956 to serve as judgment.
6. In the two suits separate decrees were prepared.
7. M/s. JaJ Narain Har Narain, Jai Narain and Har Narain filed First Appeal No. 307 of 1958 in this Court against the decree of the learned Civil Judge dated 30-4-1957. They, however, did not file any appeal against the decree passed in suit No. 599 of 1956 dismissing that suit,
8. When First Appeal No. 307 of 1958 came for hearing before B.D. Gupta, J. and one of us (A.K. Kirty, J.), a preliminary objection was taken that as no appeal was filed against the decree dismissing Suit No. 599 of 1956, the judgmentdated 30-4-1957 had become final and first appeal No. 307 of 1958 stood barred by res judicata.
9. The learned Judges referred the question of res judicata to a Full Bench. This is how the matter has come before us.
10. In each of the two suits eight issues were struck. The same are given below:--
(Suit No. 6 of 1956)
'1. Whether plaintiffs purchased any Gur through the Commission agency of the defendants at Basti, if so, how much?
2. What was the rate of commission payable by the plaintiff to the defendants and under what conditions was it payable?
3. Whether the defendant committed a breach of contract in not despatching Gur to Agra according to the plaintiff's instructions if so, its effect?
4. Whether the defendants failed to sell the Gur in question at Chauri Chaura In spite of the instructions of the plaintiff, if so, its effect?
5. . Whether the defendants have sold the goods both of Chauri Chaura and Basti and have misappropriated the sale proceeds? If so, its effect?
6. How much Gur has been despatched by the defendants from Chauri Chaura.
7. To what amount of refund as damages is the plaintiff entitled?
8. To what relief, if any, is the plaintiff entitled?'
(Suit No. 599 of 1956)
'1. Whether the suit is Barred by Section 69 of the Partnership Act?
2. Whether the plaintiff purchased 1962 maunds of Gur at Basti for the defendants, if so, whether that was part of the transaction of purchase of Gur at Chauri Chaura, if so, its effect on the suit?
3. Whether the defendants had agreed to pay to plaintiff expenses under head Kha to Na detailed in para 3 of the plaint?
4. Whether the plaintiffs are entitled to claim interest, if so, at what rate and how much?
5. Whether the plaintiff sent 500 maunds of Gur by train?
6. Whether the defendants in May1953 Instructed the plaintiffs to sell theGur at Chauri Chaura or to send themby goods train to Agra, if so, its effecton the suit?
7. When did the plaintiffs sell the Gur In suit and what was the price received for it?
8. To what relief are the plaintiffs entitled?'
As the Issues themselves show no issue was common to both the suits.
11. Mr. Jagdish Swarup, who hag appeared for the respondent in the instant first appeal, contends that the matter which has become res judicata is that thedefendants-appellants had committed the breach of the agreement dated 1-4-1953 and that question cannot be gone into again in this first appeal.
12. Issue No. 3 of Suit No. 6 of 1956 dealt with the question of the breach of the agreement. The learned Civil Judge recorded the following finding on it:--
'As agents of Bulaki Dass it was the duty of Jai Narain Har Narain to send the goods to Agra as directed by Bulaki Das. If they did not send the goods they committed breach of the contract of agency. The effect of it would be that Jai Narain Har Narain would be liable to compensate to Bulaki Dass for the loss suffered by him by this breach. I decide this issue accordingly.'
13. With regard to issues nos. 6 and 7 of Suit No. 599 of 1956 the learned Civil Judge said that 'the points covered under these issues were answered under issues nos. 3 and 5 of suit no. 6 of 1956.' On these issues he ultimately held that 'considering all these things I do not think that any auction was made on 1-2-56 of any Gur of Bulaki Das. Jai Narain Har Narain had created a false pretext to support their claim that Gur of Bulaki Das remained all along with them and also to support the claim of suit no. 599 of 1956. I think that these people sold the Gur in 1953 for Rs. 24452/14/-. These issues are decided accordingly.'
14. On issue no. 8 of suit no. 6 of 1956 and issue no. 8 of suit no. 599 of 1956, the learned Civil Judge held as follows;
'In view of the above findings I am of the opinion that Bulaki Das is entitled to a decree for the recovery of Rs. 14,202/7/. Jai Narain Har Narain are entitled to no decree in their favour.'
With regard to costs, the learned Civil Judge held that 'in view of the fact that both of these parties have come out with stories certain portions of which are false, I think they should bear their costs of these suits.'
15. Mr. Jagdish Swarup's contention is that though there was no issue directly on the question of the breach of the contract in Suit No. 599 of 1956, issues nos. 6 and 7 comprehended within them the question as to which party committed the breach.
16. We have already said earlier that the two suits were disposed of by one common judgment. Inasmuch as the instant appeal has been filed against the decree passed In suit no. 6 of 1956 of the Court of the Civil Judge, Gorakhpur, the decision dated 30-4-1957 has been put in jeopardy. It is well settled that where the court is dealing with a suit the only ground on which res judicata can be urged against such a suit would be the provisions of Section 11, C. P. C. and no other. (See L. Janakirama Iyer v. P.M. Nilkanta Iyer : AIR1962SC633 ). The same principle would apply to appeals arising out of suits.
17. We have, therefore, to see whether there is any thing in Section 11. C.P.C., which creates the bar of res judicata in the instant appeal. That provision, so far as relevant for our purposes, reads:--
'No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I. -- The expression 'former suit' shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. .....'
18. As the words 'has been heard and finally decided by such Court' in Section 11, C. P. C., would show it is a decision which creates a bar of res judicata and not a decree. In fact Section 11, C. P. C. does not speak of a decree at all.
19. All that could be done to get rid of the judgment dated 30-4-1957 has been done, as it has been appealed against. For that reason it has not become final. The decree in suit no. 599 of 1956 may have become final not having been appealed against but that would not make the judgment final. The result of consolidating the two suits was to combine the controversies in the two suits into a single controversy and to make the proceedings of the suits a single proceeding. That controversy and that proceeding was concluded by means of the judgment dated 30-4-1957 and inasmuch as that judgment has been put in jeopardy, it (that judgment) cannot operate as res judicata. Before Section 11 C. P. C. can apply, the matter in controversy must have been 'finally decided'. Inasmuch as the decision is sub judice in appeal, it cannot be said that the matter has been finally decided.
20. The principle of res judicata Is based upon the maxim that no one shall be vexed twice over the same matter:
'In Mt. Lachmi v. Mt. Bhulli, AIR 1927 Lah 289 (FB), it was held that 'res judicata is either estoppel by verdict or estoppel by judgment (or record), and, there is BO such thing as estoppel by 'decree'. .....'. The determiningfactor is not the decree but the decision of the matter in controversy. It was further observed that 'where two suits, having a common issue, are, by consent of parties or by order of the Court, tried together, the evidence being written in one record and both suits disposed ofby a single judgment, can it be said that there have been two distinct and independent trials?'
21. In Narhari v. Shanker : 1SCR754 the decision in AIR 1927 Lah 289 (FB) was approved and it was observed as follows:--
'As has been observed by Tek Chand J. in his learned judgment in AIR 1927 Lah 289 (FB), mentioned above, the determining factor is not the decree but the matter in controversy. As he puts it later in his judgment, the estoppel is not created by the decree but it can only be created by the judgment.'
22. It has been contended that the proposition that res judicata is created by a judgment or a decision and not by a decree is no longer tenable in view of the decisions in Badri Narayan Singh v. Kamdeo Prasad Singh : 3SCR760 and Sheodan Singh v. Daryao Kunwar : 3SCR300 .
23. In : 3SCR760 (supra), : 1SCR754 (supra) was cited. The Supreme Court while dealing with Narhari's case observed:--
'The learned Counsel for the appellant relied on the judgment of this court in : 1SCR754 in support of his contention that the judgment in Election Appeal No. 7 cannot operate as res judicata in this appeal. That case is distinguishable on facts and is with respect to the interpretation of Section 11 of the Code of Civil Procedure .....We are therefore of opinion that both in view of the facts of the case and the provision of law applicable to that case, that case can be no guide for determining the question before us in this appeal.'
24. In : 3SCR300 (supra) the case of AIR 1927 Lah 289 (FB) (supra) was cited before the Supreme Court The learned Judges observed:--
'We need not consider the correctness of these rival views as they raise the question as to whether one decision or the other can be said to be former where the two suits were decided by the same judgment on the same date. This question does not fall to be decided before us and we do not propose to express any opinion thereof. But the Nagpur decision is of no help to the appellant, for in the present case res judicata arises because of earlier decision of the High Court in appeals arising from suits nos. 77 and 91. Panchanada Velan v. Vaithinatha Sastrial,, (1906) ILR 29 Mad 333 and ILR (1927), 8 Lah 384: AIR 1927 Lah 289 (FB) are similar to the Nagpur case and we need express no opinion as to their correctness.'
25. Therefore, neither of the two Supreme Court cases mentioned above departs from the view taken by that Court in : 1SCR754 (supra). Nor do these two cases overrule ILR 8 Lah 384 = AIR 1927 Lah 289 (FB) (supra) -- or the proposition that the bar of res judicata is created by a judgment or a decision.
26. If the appellants in the instant appeal had also appealed against the decree passed in Suit No. 599 of 1956, and in that appeal the judgment passed by the trial court had been confirmed by this Court then it could be contended that the instant appeal was barred by res judicata because in that case the decision of the trial Court would stand affirmed by this Court and the case would have been similar to : 3SCR300 (supra). Tn the present case no appeal had been filed against the decree passed in Suit No. 599 of 1956 and this Court has not affirmed the judgment dated 30-4-1957. It is therefore difficult to see as to how there is a bar of res judicata in this case.
27. The position is that the instant appeal has been filed against the decree passed in Suit No. 6 of 1956 and the decision dated 30-4-1957 having been challenged in this appeal, has become sub judice and is no longer final. The decision having been put to jeopardy, there is no decision left on the basis of which it can be contended that there is in existence a bar of res judicata.
28. Mr. Jagdish Swarup also placed reliance upon Bhagwan Sahai v. Daryao Kunwar : AIR1963All210 . That case is distinguishable as its facts would show. Bhagwan Sahal, the appellant in that case, brought suit No. 37 of 1950 against Smt. Daryao Kunwar for a declaration that he and his son Ch. Sheodan Singn were owners of the properties in suit and for possession. Shortly afterwards he filed Suit No. 42 of 1950 against Smt. Daryao Kunwar and one other person claiming the price of the crop which stood on some Sir and Khudkasht plots on the allegations that Smt. Daryao Kuer had cut and misappropriated the Kharif crop standing on those plots even though she had no right, title or interest in the same.
29. During the pendency of the aforesaid suits, Smt. Daryao Kuer also instituted Suits Nos. 77 and 91 of 1950, against Bhagwan Sahai and his son Ch. Shiv Dan Singh. Suit No. 77 was for the recovery of the price of her share of the crops grown on some Sir and Khudkasht plots. In Suit No. 77 of 1950 Smt. Daryao Kuer claimed the relief of permanent injunction for restraining Bhagwan Sahai and Ch. Shiv Dan Singh from letting out the Sir and Khudkasht plots without her consent.
30. The two suits of Bhagwan Sahai were filed in the Court of the Civil Judge, while the two suits of Smt. Daryao Kuer were filed in the court of the Munsif. Smt. Daryao Kuer's suits were transferred to the 'court of the Civil Judge and all thefour suits were consolidated and tried together with the consent of the parties and were disposed of by a common judgment, though a separate decree was prepared hi each suit.
31. In all the four suite, five issues were common. One of the common issues related to the respective rights of the parties to the property in suit. The finding of the learned Civil Judge on this common issue was that Smt. Daryao Kuer was entitled to the properties claimed by Bhagwan Sahai. in Suit No. 37 of 1950. The learned Civil Judge, therefore, dismissed that suit. He decreed Suit No. 91 of 1950 in its entirety and Suit No. 42 of 1950 and Suit No. 77 of 1950 in part. He, however, granted to Smt. Daryao Kuer permanent injunction restraining Bhagwan Sahai from letting out the suit plots without her consent.
32. Bhagwan Sahai preferred first appeals Nos. 365 and 366 of 1951 in the High Court against the decrees passed in Suits Nos. 37 and 42 of 1950. He also filed Civil Appeals Nos. 452 and 453 of 1951 in the Court of the District Judge against the decrees in suits Nos. 77 and 91 of 1950. The appeals before the District Judge were transferred to the High Court. This court rejected appeal no. 453 of 1951 on 9th of October 1953 as barred by time. It also dismissed Appeal No. 452 of 1951 on 7th of October 1955 on account of failure of Bhagwan Sahai to apply for translation and printing of the record as required by the Rules of Court. On the basis of the dismissals mentioned above, it was argued that first appeals nos. 365 and 366 of 1951 be dismissed as the main question involved therein, that is, the title of Smt. Daryao Kusr to the suit property had become final on account of dismissal by this Court of appeals arising out of suits Nos. 77 and 91 of 1950. The Full Bench hearing the case distinguished the ease of : 1SCR754 (supra) on the ground that in that case there was only one suit and held that First Appeals Nos. 365 and 366 of 1951 were barred by res judicata. In Bhagwan Sahai's case : AIR1963All210 the High Court had affirmed the decision of the trial Court while dismissing Civil Appeal No. 453 of 1951 as barred by time and Civil Appeal No. 452 of 1951 on the ground of want of prosecution. This case is, therefore, clearly distinguishable.
33. Reliance was also placed upon Kusum Lata v. Kampta Prasad : AIR1965All280 . In that case a wife had filed a suit against her husband for judicial separation under Section 10 of the Hindu Marriage Act and the husband had filed a petition under Section 9 of the Act against the appellant for the restitution of his conjugal rights. The proceedings were consolidated and common evidencewas recorded in both the cases which were disposed of by a common judgment. The trial court dismissed both the petitions. The wife appealed to the District Judge against the dismissal of her petition, while the husband did not file any appeal against the dismissal of his case. The District Judge dismissed the appeal filed by the wife and she brought a 2nd appeal in the High Court which was heard by Beg J. Beg J., while dealing with the question of res judicata on account of the husband not filing an appeal against the dismissal of his petition observed:--
'The decrees in two proceedings are still separate..... In thepresent case, the respondent husband has submitted to the decree against him and did not challenge the findings upon which his suit was dismissed.
The failure of the respondent's suit for restitution of conjugal rights necessarily meant the success of a ground for judicial separation. In my opinion, the requirements of section 11 C. P. C. are fully satisfied in this case. The bar of res judicata, under Section 11 C. P. C. operated against the respondent on patent facts which are apparent from a bare perusal of the judgments of the courts below.'
34. With great respect to Beg. J. we are unable to agree with him. The bar of res judicata is not created by a decree, but by a decision. In any case Kusum Lata's case : AIR1965All280 is clearly distinguishable also on facts. There the husband had accepted the decision of the trial Court. In the present case M/s. Jai Narain Har Narain, Jai Narain and Har Narain have not accepted the decision of the learned Civil Judge inasmuch as they have filed First Appeal No. 307 of 1958.
35. The next case on which reliance is placed is Zaharia v. Debia, (1910) 7 All LJ 861 (FB). In that case two suits were filed which were tried together and disposed of by one judgment, but a separate decree was prepared in each of the two cases. An appeal was preferred against the decree in one of the suits only. It was held that the appeal would be barred by the other decree which stood unreversed and was binding upon the appellants.
36. Reliance was also placed upon Dakhni Din v. Ali Ashghar, (1910) 7 All LJ 995. In this case the learned Judge followed the decision of this Court in (1910) 7 All LJ 861 (Supra).
37. Mr. Jagdish Swarup also cited before us Mohammad Mohtashim v. Joti Prasad : AIR1941All277 . In that case Lala Joti Prasad had brought Suit No. 48 of 1936 for recovery of a certain sum of money on the basis of a promissory note executed by Sayid Mohammad Mohtashim and Sayid Mohammad Mohtarim. SayidMohammad and Sayid Mohammad Mohtarim filed Suit No. 488 of 1934 against Lala Joti Prasad under Section 33 of the Agriculturists' Relief Act. The two suits were disposed of by a single judgment. In Suit No. 488 of 1934 the Court came to the conclusion that a certain sum of money was due by the debtors to the creditor and a declaratory decree under Section 33(2) was given to the debtors. In Suit No. 48 of 1936 the trial Court came to the conclusion that the identical sum of money found due in the other case was due to Lala Joti Prasad from the debtors.
38. Sayid Mohammad Mohtashim and Sayid Mohammad Mohtarim filed a first appeal in the High Court, against the decree passed in Suit No. 48, but they did not file one against the decree passed in Suit No. 488 of 1934. A Division Bench of this Court held that the appeal filed in the High Court stood barred by res judicata.
39. With great respect to the learned Judges, who decided the three cases mentioned above, we are unable to agree with them. In our opinion, they proceeded on a wrong assumption that res judicata 9 created by a decree.
40. Cases from other courts were also cited before us.
41. The two cases from Oudh are: B. Shanker Sahai v. B. Bhagwat Sahai, AIR 1946 Oudh 33 (FB) and Ahmad Ali Khan v. Hinga Lal, AIR 1947 Oudh 74. In the first of these two cases the main question referred to the Full Bench was 'where two suits between the same parties involving common issues are disposed of by one judgment but two decrees, and an appeal is preferred against the decree in one but it is either not preferred in the other or is rejected as incompetent, does the matter decided by the latter decree become res judicata, so that it cannot be reopened in appeal against the former?' The learned Judges constituting the Full Bench answered the question by saying that 'the incompetency of the second appeal does not amount to a finding that the judgment is accepted as correct.'
42. In the second Oudh case the question was whether a judgment abating a second appeal on the ground that the necessary parties were not before the Court will operate as res judicata as regards questions decided by the first appellate court in a subsequent suit between the same parties. It was held by the Division Bench hearing the case that it would be so barred.
43. It is true that the view taken tn AIR 1946 Oudh 33 (supra) is no longer good law in view of the decision of the Supreme Court in AIR 1966 SC 1332 (supra). The facts of that case were however different from those before us. Theother Oudh case is also distinguishable on facts because that is not a case of common judgment in the consolidated cases.
44. The three cases of the Madras High Court that have been cited before us are :-- (1906) ILR 29 Mad 333, Papammal v. Meenammal, AIR 1943 Mad 139 (FB) and Subbiah Udayar v. Karuppiah Odayar, ILR (1965) 1 Mad 57,
45. It seems to be the consistent Madras view that the object of the appeal being in substance to get rid of the very adjudication which is put forward as constituting res judicata that adjudication in the other connected suits, which had become final not being appealed against, should not be held to bar the appeal.
46. Kerala High Court in Sarah Abraham v. P. Abraham AIR 1959 Ker 75 took the same view that we are taking in this case.
47. In Depal v, Parashwanath Digamber Jain Yidyalaya , Wanchoo C. J. and Dave J. following the decision in : 1SCR754 (supra) held that it is not the decree which creates estoppel but it is the judgment only which can be available for a successful plea of res judicata. The same view was taken in Bai Chanchal v. Bai Suraj : AIR1963Guj198 by the Gujarat High Court
48. The only decision of the Calcutta High Court that has been cited before us Is Isup Ali v. Gour Chandra Deb, AIR 1923 Cal 496. The view taken In this case is similar to one taken in (1910) 7 All LJ 861 (FB) (supra).
49. For the reasons for which we have disagreed with the view taken in (1910) 7 All LJ 861 (FB) (supra), we disagree from the view taken in the abovementioned Calcutta case.
50. In Sumi Debl v. Pranakrushna Panda. AIR 1956 Orissa 68, the Orissa High Court dissented from the decision in : 1SCR754 (supra) on the ground that not being a decision of the Supreme Court of India it was not binding upon them and held that Section 11, C. P. C. would bar an appeal when In two consolidated suits, disposed of by a common judgment appeal was not filed against the decree passed In one of the suits.
51. We are unable to agree with the Orissa High Court because as already pointed out earlier we are of the opinion that the bar of res judicata is not created by a decree but by a decision or judgment
52. Three cases of the Patna High Court were cited before us. They are: Dhani Singh v. Sri Chandra Choor Deo, AIR 1924 Pat 823, Mrs. Gertrude Oates v. Mrs. Millicent D'Silva. AIR 1933 Pat 78 and Raghunandan Singh v. Smt Soubhagya Sundari Devi, AIR 1948 Pat 191.
53. These cases proceeded on the footing that the bar of res judicata is created by a decree, a view which, with great respect, we have not been able to accept
54. In view of what we have said above we answered the question referred to us by saying that the judgment dated 30-4-1957 has not become final and that first appeal no. 307 of 1958 does not stand barred by res judicata.
A.K. Kirty, J.
55. I fully agree but respectfully desire to add some additional reasons as they occur to me.
56. As held by the Supreme Court in R. Vishwanathan v. Abdul Wajid : 3SCR22 , the expression 'former suit' by the Explanation 1 to Section 11, C. P. C, denotes a suit which has been decided prior to the suit in which the bar of res judicata is raised whether or not it was Instituted prior thereto. In cases of consolidation of suits, heard simultaneously and decided by a common judgment, the expressions, 'former suit' and 'subsequent suit' and the question of the competence of the Court which decided the 'former suit' to try the 'subsequent suit' lose their significance and importance, at least in so far as the trial Court is concerned. If at all, the suit in which the common but leading judgment is pronounced and in the record of which the said judgment is placed as an integral part thereof can be said to be the 'former suit'. So far as the trial Court is concerned, which was competent to try both the suits, a question of res judicata can hardly arise. Even if technically such a question is considered to be capable of being raised, the material decision or finding in the suit, which, as indicated above, is to be treated as the 'former suit', will operate as res judicata in the other suit
57. Literally, Section 11, C. P. C. applies only to suits and not to appeals. Almost all the courts in India, including the Supreme Court, have, however, held that it applies to appeals as well. Now when two or more suits are consolidated and decided by a common judgment and appeals are filed against the decrees passed in all the suits and in the same court no question of res judicata can really arise if the appeals are also heard and decided simultaneously. Difficulties, however, arise when one of such appeals Is either heard and decided separately or for want of prosecution or for some other reason is dismissed and the decision of the Court below stands confirmed as a result thereof. The bar of res judicata will under those circumstances be applicable to the other surviving appeal or appeals. This, as I understand, Is the legal position which emerges out of the decision of the Supreme Court in : 3SCR300 . In such cases applying theprinciples that an appeal is a continuation of the suit and that the decision in the 'former suit' is the decision which is prior in point of time, little difficulty is to be confronted with, the 'subsequent suit' being within the competence of the same Court.
58. The position, however, cannot be the same when appeals arising from the different consolidated suits dp not lie in the same court or courts having equal or co-ordinate jurisdiction. As in the instant case, although two consolidated suits are decided by a civil Judge, because of pecuniary jurisdiction an appeal against the decree in one may lie in the Court of the District Judge, whereas the appeal against the decree in the other may lie only in the High Court. Now, if, under such circumstances, the appeal in the Court of the District Judge is decided first, the decision of the District Judge cannot, in my opinion, operate as res judicata in the appeal in the High Court. The decision of the District Judge may be treated as the decision in the 'former suit' but the appeal in the High Court, even if it is treated as the 'subsequent suit', certainly is not one which the District Judge is competent to decide. Therefore Section 11 of the Code of Civil Procedure can neither be invoked nor applied. The legal position would be the same whether an appeal which lay in the Court of the District Judge was filed and decided after hearing or dismissed for want of prosecution or such similar reason or It was not filed at all.
59. For the above reasons also, the preliminary objection of the learned counsel for the respondent cannot be accepted and the question referred to this Bench must, as held by my brother, J. Sahai, be answered in the negative.